Ex Parte Starner et al

Patent Trials and Appeals BoardMar 27, 2019

14706839 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/706,839 05/07/2015 98929 7590 03/27/2019 McDonnell Boehnen Hulbert & Berghoff LLP/Google LLC 300 South Wacker Drive, Suite 3100 Chicago, IL 60606 FIRST NAMED INVENTOR Thad Eugene Starner UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 11-1534-US-CON 5659 EXAMINER PATEL, SANJIV D ART UNIT PAPER NUMBER 2622 MAIL DATE DELIVERY MODE 03/27/2019 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte THAD EUGENE STARNER, IRFAN ESSA, HA YES SOLOS RAFFLE, and DANIEL AMIN ZADE Appeal2018-004365 Application 14/706,839 Technology Center 2600 Before JOHNNY A. KUMAR, MATTHEW J. McNEILL, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) from a final rejection of claims 1-20, i.e., all pending claims. We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. 1 Appellants identify the real party in interest as Google Inc. App. Br. 1. Appeal2018-004365 Application 14/706,839 STATEMENT OF THE CASE The Invention According to the Specification, the invention concerns ( 1) "receiving video data" including a first frame and a second frame "recorded by a camera on a wearable computing device," (2) "detecting an area in the first frame that is at least partially bounded by a pointing device," (3) "detecting in the second frame that the area is at least partially occluded by the pointing device," and ( 4) "initiating a search on the area." Spec. ,r 4, Abstract. 2 The Specification explains that a "user may 'pinch' the area, by, for example, at least partially bounding the area with the user's thumb and forefinger and then bringing the thumb and forefinger together to at least partially occlude the area." Id. ,r 20. Exemplary Claim Independent claim 1 exemplifies the claims at issue and reads as follows: 1. A method comprising: receiving video data recorded by a camera on a wearable computing device, wherein the video data comprises at least a first frame and a second frame; detecting a pinch gesture captured in the video data, wherein detecting the pinch gesture comprises both: 2 This decision uses the following abbreviations: "Spec." for the Specification, filed May 7, 2015; "Final Act." for the Final Office Action, mailed June 7, 2017; "App. Br." for the Appeal Brief, filed December 22, 2017; "Ans." for the Examiner's Answer, mailed January 25, 2018; and "Reply Br." for the Reply Brief, filed March 20, 2018. 2 Appeal2018-004365 Application 14/706,839 (a) detecting an area in the first frame that is at least partially bounded, in the first frame, by opposing digits of a pointing device, wherein the area comprises image data of real-world subject matter including an object; and (b) within a predetermined period of time from detecting the area in the first frame that is at least partially bounded by the pointing device, detecting, in the second frame, that the opposing digits moved to at least partially occlude the real-world object; and in response to detecting the pinch gesture, initiating a search on image content of the real-world object in the detected area in the first frame. App. Br. 12 (Claims App.). The Prior Art Supporting the Rejections on Appeal As evidence ofunpatentability under 35 U.S.C. Â§ I03(a), the Examiner relies on the following prior art: Fujimura et al. ("Fujimura") US 2005/0271279 Al Dec. 8, 2005 Sablak et al. ("Sablak") US 2005/0280707 Al Dec. 22, 2005 Marti US 2009/0109795 Al Apr. 30, 2009 Kretz et al. ("Kretz") US 2009/0254855 Al Oct. 8, 2009 Jacques US 9,185,352 Bl Nov. 10, 2015 (filed Dec. 21, 2011) The Re} ections on Appeal Claims 1--4 and 8-15 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Marti and Kretz. Final Act. 3-7. Claims 5 and 16 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Marti, Kretz, and Sablak. Final Act. 7-8. Claims 6, 17, 19, and 20 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Marti, Kretz, and Jacques. Final Act. 8-10, 11-15. 3 Appeal2018-004365 Application 14/706,839 Claims 7 and 18 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Marti, Kretz, and Fujimura. Final Act. 10-11. ANALYSIS We have reviewed the rejections of claims 1-20 in light of Appellants' arguments that the Examiner erred. Based on the record before us and for the reasons explained below, we concur with Appellants' contentions that the Examiner erred in finding that the cited portions of Marti and Kretz teach or suggest detecting "opposing digits moved to at least partially occlude" a "real-world object" as required by each independent claim. TheÂ§ 103(a) Rejections of Claims 1-4, 6, 8-15, 17, 19, and 20 INDEPENDENT CLAIMS 1 AND 9 Appellants argue that the Examiner erred in rejecting independent claims 1 and 9 because Marti and Kretz do not teach or suggest the following limitation in claim 1 and an almost identical limitation in claim 9: "detecting, in the second frame, that the opposing digits moved to at least partially occlude the real-world object." See App. Br. 4--12; Reply Br. 2--4. Specifically, Appellants assert that Marti "teaches that the second or subsequent image is analyzed to detect the object" but "does not suggest that detection of a gesture could involve detecting, in the second frame, that the opposing digits moved to at least partially occlude the real-world object, as recited by claim 1." App. Br. 6; see Reply Br. 2. Appellants also assert that Kretz "simply involve[s] capturing image data of a user's hand, and using that image data to generate a superimposed image of the hand which is displayed on [a] graphic display." App. Br. 8; see Reply Br. 2-3. 4 Appeal2018-004365 Application 14/706,839 In particular, Appellants contend that with a portable device according to Kretz, e.g., a mobile phone, "a user can move their fingers in the air to control a superimposed image of their fingers on a graphic display, which essentially functions as a mouse cursor, and can pinch their fingers together to simulate the functionality of a mouse click (e.g., to select [a]n object)." App. Br. 8 (citing Kretz ,r 54); see Reply Br. 2 (citing Kretz ,r 54). Hence, Appellants urge that Kretz lacks any "teaching or suggestion to analyze the image data that includes the user's hand to determine whether the user's fingers are occluding anything in the real-world surroundings captured in the same image data," and thus lacks any teaching or suggestion "to determine when opposing digits are occluding a real-world object that is also captured in the image data." App. Br. 8. Appellants add that "Kretz is implemented in a scenario where detecting occlusion of a real-world object isn't even feasible .... " Reply Br. 2. In response, the Examiner admits that Marti "does not disclose ... a pinch gesture [that] is captured in the video data" and "also does not disclose detecting in the second frame that opposing digits are moved to at least partially occlude the real world object." Ans. 6; see Final Act. 4. But the Examiner determines that Kretz "discloses that a pinch gesture is captured in the video data" and "that the joining of a finger and a thumb to complete a pinch gesture necessarily occurs in a second or subsequent frame." Ans. 6-9 ( citing Kretz ,r,r 6, 57-58, 64--65, Fig. 3). Based on the record before us, we agree with Appellants that the Examiner has not adequately explained how the cited portions of Marti and Kretz teach or suggest detecting "opposing digits moved to at least partially occlude" a "real-world object" as required by claims 1 and 9. As the 5 Appeal2018-004365 Application 14/706,839 Examiner admits, Marti does not disclose that limitation. See Final Act. 4; Ans. 6. Although Kretz discloses capturing a pinch gesture in video data, that pinch gesture does not occlude any part of a real-world object. See, e.g., Kretz ,r,r 48---67, Figs. 3, 4A--4D. Instead, that pinch gesture interacts with a virtual object, e.g., an icon, appearing on a portable device's display by superimposing the gesture onto the display. See id. ,r,r 8, 16, 21, 49-51, 54, 64--67, Figs. 4A--4D. Hence, we do not sustain theÂ§ 103(a) rejection of claims 1 and 9. INDEPENDENT CLAIM 19 Like claim 1, independent claim 19 requires "detecting, in the second frame, that the opposing digits moved to at least partially occlude the real- world object." App. Br. 16 (Claims App.). The Examiner does not rely on Jacques to teach or suggest that limitation. See Final Act. 11-15; Ans. 2-12. As discussed above, the Examiner has not adequately explained how the cited portions of Marti and Kretz teach or suggest detecting "opposing digits moved to at least partially occlude" a "real-world object." Hence, we do not sustain the Â§ 103 (a) rejection of claim 19. DEPENDENT CLAIMS 2--4, 6, 8, 10-15, 17, AND 20 Claims 2--4, 6, and 8 depend directly from claim 1; claims 10-15 and 17 depend directly or indirectly from claim 9; and claim 20 depends directly from claim 19. For the reasons discussed for claims 1, 9, and 19, we do not sustain theÂ§ 103(a) rejections of claims 2--4, 6, 8, 10-15, 17, and 20. TheÂ§ 103(a) Rejections of Claims 5, 7, 16, and 18 Claims 5 and 7 depend directly from claim 1; and claims 16 and 18 depend directly or indirectly from claim 9. On this record, the Examiner has not shown how the additionally cited secondary references-Sablak and 6 Appeal2018-004365 Application 14/706,839 Fujinmra----overcome the deficiency in Marti and Kretz discussed above for claims 1 and 9. Hence, we do not sustain theÂ§ 103(a) rejections of claims 5, 7, 16, and 18. Because this determination resolves the appeal with respect to claims 1-20, we need not address Appellants' other arguments regarding Examiner error. See, e.g., Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (explaining that an administrative agency may render a decision based on "a single dispositive issue"). DECISION We reverse the Examiner's decision to reject claims 1-20. REVERSED 7